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The meaning of Oregon’s anti-walkout measure will soon be clear

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Senate Minority Leader Tim Knopp, R-Bend, is one of five GOP lawmakers suing for the right to run for reelection. Knopp walked away from the Capitol this year, running afoul of a 2022 measure that penalizes legislative walkouts.

Senate Minority Leader Tim Knopp, R-Bend, is one of five GOP lawmakers suing for the right to run for reelection. Knopp walked away from the Capitol this year, running afoul of a 2022 measure that penalizes legislative walkouts.

Amanda Loman / AP

The political fate of eight Republican state senators hinges on 13 words that will be dissected in detail before the Oregon Supreme Court on Thursday.

At issue in oral arguments is whether GOP senators who walked away from this year’s session will be blocked from running for re-election — as state elections officials have determined they must be — or whether the plain language of the law allows them to serve another term before penalties kick in.

There is little question what voters intended.

Related: Challenge to anti-walkout law could go straight to Oregon Supreme Court

When they overwhelmingly approved Measure 113 in 2022, Oregonians signaled they wanted swift penalties for legislative walkouts that Republican lawmakers have launched with increasing frequency in recent years.

The new law ensured any lawmaker who accrues at least 10 unexcused absences in a single session, as 10 GOP senators did this year, would be prevented from seeking re-election. In voter’s pamphlet explanatory statements and news articles, voters would have understood those penalties to kick in immediately.

The problem, potentially, is the 13 words being considered by justices.

‘For the term following the election after the member’s current term is completed’

Pushed by public employee unions and backed by top Democrats, Measure 113 was an attempt to end legislative walkouts. To do so, the law inserted language into the state constitution that says any lawmaker with 10 or more unexcused absences can’t hold office “for the term following the election after the member’s current term is completed.”

Those 13 words will now dictate whether most of the Senate’s 13 GOP members are on their way out.

Republican senators say that convoluted language amounts to a stay of execution. Since elections are held prior to the end of a legislative term, not after, they contend the words unambiguously grant them another term before being blocked from running.

Related: GOP senators’ challenge to walkout penalties lands before Oregon Supreme Court

Five Republican senators — Tim Knopp, Daniel Bonham, Suzanne Weber, Dennis Linthicum and Lynn Findley — have sued Secretary of State LaVonne Griffin-Valade, challenging her ruling that they can’t be allowed on the ballot again under Measure 113.

“I think the court would have to do lots of gymnastics in order to believe that the language is ambiguous,” said John DiLorenzo, a Portland attorney representing the plaintiff Republicans. “It is unambiguous. You look at it, it says what it says.”

DOJ’s novel interpretation of the words — with commas

The Oregon Department of Justice disagrees. In a brief filed in October, the agency says that the GOP reading of Measure 113 is merely one interpretation of the text.

The DOJ argues for a far more novel interpretation of the measure — one featuring invisible commas.

It wants justices to read the phrase “for the term following the election after the member’s current term is completed” not as one coherent thought. Instead it says the phrase would more accurately be read as “for the term, following the election, after the member’s current term is completed.”

“Read that way, the text emphasizes that the ‘term’ of disqualification is the next term, by saying so in two different ways — i.e., the term ‘following the election’ and the term ‘after the member’s current term is completed,’” DOJ attorneys wrote.

Related: Boycotting Oregon senators believe loophole will allow them to win another term

The state acknowledges that its “alternative reading is not necessarily the most natural way to parse the text.” But the DOJ says that reading is the only way to square the measure with what both sides agree voters wanted: for penalties to kick in immediately.

“Most of the legislative history — in fact I would say all of it — supports what the secretary thinks the rule should be,” DiLorenzo acknowledged. But he suggested justices will be getting into dicey territory if they rule against what he says is the plain wording of the measure.

“If the court wants to basically allow legislative history to trump the actual language, they’re going to have to be very careful what kind of rule they fashion,” he said. “They could be opening a Pandora’s box.”

Unions’ call for interpretation based on voters’ intent

The DOJ has plenty of allies in the case.

Eight separate labor unions and advocacy groups — including Basic Rights Oregon, Planned Parenthood, and Service Employees International Union Local 503 — have signed onto a brief defending Griffin-Valade’s ruling. They criticize the plaintiffs for making an “illogical, solely textual reading of Ballot Measure 113 that would disregard the intent of the voters.”

The brief notes that the ballot voters filled out included an explanation — penned by the DOJ — that a “yes” vote would disqualify absent lawmakers “for term following current term of office.”

Related: Oregon secretary of state: Senators who walked out can’t run next year

The American Civil Liberties Union of Oregon also weighed in to argue that justices should focus on voters’ intent when deciding how to interpret the measure.

And the chief petitioners behind Measure 113, Andrea Kennedy-Smith and Reed Scott-Schwalbach, have filed a brief that chides Republicans for their “plausible but overly literal reading of the text.”

“Throughout the initiative adoption process, no one read the language to mean what Petitioners now claim,” the pair, both high-ranking officials in public-sector unions, said in a brief before the court. “That is because the language is clear, in context. It provides that absent legislators shall be disqualified ‘for the term following the election’ which is the term ‘after the member’s current term is completed.’”

Related: Republican senators sue Oregon secretary of state, saying walkout doesn’t block them from seeking reelection

The court is expected to hear oral arguments for an hour on Thursday, and is likely to issue a ruling before the March 12 deadline to file for office.

Its opinion will have a big influence on who remains in the Senate for the 2025 legislative session. Of 10 Republicans who violated Measure 113 with this year’s walkout, six have terms that expire at the beginning of 2025. Two of those — Sens. Bill Hansell and Lynn Findley — have already announced they will retire.

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